Dudley v. Rye

Supreme Court of Alabama

Dudley v. Rye

95 So. 810, 209 Ala. 164, 1923 Ala. LEXIS 344

CourtSupreme Court of Alabama

DecidedApril 5, 1923

Docket4 Div. 30.

StatusPublished

Cited by5 cases

This text of 95 So. 810 (Dudley v. Rye) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dudley v. Rye, 95 So. 810, 209 Ala. 164, 1923 Ala. LEXIS 344 (Ala. 1923).

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Opinion

ANDERSON, C. J.

Should this bill be construed as one to have dower assigned, it is faulty, and was subject to demurrer, as section 3825 of the Code of 1907 confers jurisdiction upon the probate court except in the one instance provided by section 3835. As th'e facts do not bring this case within the influence of said last section, in order to have dower assigned by the chancery couft the bill should present an independent equity.

The only other theory upon which it could rest is the sale of the lands for distribution, which cannot be done before the assignment of dower except with the consent of the respondent. Hamby v. Hamby, 165 Ala. 171, 51 South. 732, 138 Am. St. Rep. 23; Boyles v. Wallace, 208 Ala. 213, 93 South. 908.

The trial court erred in not sustaining the respondent’s demurrer to the bill of complaint, and the decree is reversed, and one is here rendered sustaining said demurrer.

Reversed and rendered.

SAYRE, GARDNER, and MILLER, JJ„ concur.

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